NORFOLK, Va. (USA TODAY) -- The legal battle for same-sex marriage was fought
Tuesday in the Deep South, scene of past civil rights skirmishes over
school segregation, gender discrimination and interracial marriage.
two hours inside a wood-paneled courtroom, five lawyers representing
three sides of the argument - including a Virginia solicitor general
whose boss last month switched sides - opened the latest chapter in a
nationwide debate of historic proportions.
While about two dozen
demonstrators on each side of the issue protested on opposite sidewalks
outside, federal District Court Judge Arenda Wright Allen listened
patiently before promising, "You'll be hearing from me soon."
were nearly all the words spoken by Wright Allen, the latest in a long
line of federal and state jurists deciding cases on the rights of gays
and lesbians to marry since the Supreme Court advanced the cause in two
landmark decisions last June.
The attorneys for the two couples
challenging Virginia's constitutional ban on same-sex marriage argued
for a preliminary injunction that would allow those marriages to take
place immediately. In an odd twist prompted by state Attorney General
Mark Herring's decision to switch sides, his solicitor general, Stuart
Raphael, also opposed the state's ban. But he said any injunction should
be stayed until higher courts weigh in, lest marriages are consummated
and then annulled.
"Only the United States Supreme Court can decide this issue," Raphael said. "It's got to get there."
case is one of 47 same-sex marriage lawsuits pending in 24 states, one
or more of which is almost certain to reach the high court within the
next year or two. Because Norfolk is in the federal court system's 4th
Circuit, which tends to act quickly, its case might be the one.
would suit Theodore Olson and David Boies, the high-powered legal team
brought in by local attorneys to argue the high-profile case. They put
on a tag-team display Tuesday that led Carol Schall, one of the
plaintiffs, to remark after the hearing: "There were moments that were
"Virginia erects a wall around its gay and lesbian
citizens, excluding them from the most important relation in life,"
Olson said. Boies added, "On the other side, all you have is a desire to
preserve the status quo."
That history and tradition were part of
the argument coming from lawyers representing two circuit court clerks
charged with issuing marriage licenses. Virginia's marriage laws date
to the 1600s, and the definition of marriage is "as old as the Book of
Genesis," said David Oakley, the lawyer representing Norfolk Circuit
Court Clerk George Schaefer.
They also contended that the issue
should be left to the state Legislature and voters, who decided in 2004
and 2006, respectively, that same-sex marriage should be banned.
legislative process is to be respected," Oakley said. "It's more
appropriate to allow the General Assembly and the voters to make that
To which Olson responded, "Sometimes the voters and the legislatures get it wrong."
Nimocks, representing Prince William County Circuit Court Clerk Michele
McQuigg, said the state has a right to restrict marriage to
"potentially procreative couples."
"Every child has a mother and a
father," Nimocks said, and it's better for those children to grow up
with both - an arrangement he said "has a proven track record." As he
spoke, Schall's and Mary Townley's teenage daughter, Emily, sat in the
fourth row between her lesbian parents.
Action in federal and
state courts has been swift since last June's dual decisions by the
Supreme Court that reopened the doors to gay marriages in California and
struck down a key section of the Defense of Marriage Act, which had
denied federal benefits to legally married same-sex couples.
latter decision was cited by lawyers on both sides, as Supreme Court
Justice Antonin Scalia angrily predicted in his dissent last June. Those
opposed to same-sex marriage noted the ruling did not affect states,
like Virginia, that have banned the practice. Those arguing for marriage
equality quoted freely from Justice Anthony Kennedy's majority opinion,
which said the federal law had imposed "a disadvantage, a separate
status, and so a stigma" on gay and lesbian couples.
past four months, judges in New Jersey, New Mexico, Oklahoma and Utah
have ruled that those states must allow same-sex couples to marry. The
Oklahoma and Utah cases are being appealed to the 10th Circuit Court of
Appeals, which will hear them in April, putting them on the fastest
track toward the Supreme Court.
Seventeen states and the District
of Columbia allow same-sex marriage, including the entire Northeast.
Most of the remaining states have constitutional amendments or laws
prohibiting the practice, forming a geographic bulwark the Supreme
Court may be loath to break too soon.
The Virginia case won
attention last month when Herring, a Democrat narrowly elected in
November, announced that the state would not defend the ban and instead
would side with the plaintiffs calling for marriage rights. Herring
attended Tuesday's hearing but did not speak.
That left the
circuit court clerks to defend the ban, one of the broadest in the
nation. It bars gays and lesbians from marriage, civil unions and
domestic partnerships, and denies recognition in Virginia to same-sex
couples married in other states.
The two couples at the center of
the case have been together for nearly 25 and 30 years. Timothy Bostic
and Tony London filed the case originally in Norfolk days after the high
court's rulings in June. Schall and Townley joined up later. They were
married in California in 2008, before Proposition 8 was tied up in
court, but their marriage isn't recognized in Virginia.
couples cannot get marriage benefits enjoyed by opposite-sex couples
under Social Security, Medicaid and the Veterans Administration, as well
as favorable tax treatment for income and estate taxes. Their status
has caused "severe humiliation, emotional distress, pain, suffering,
psychological harm and stigma," their attorneys argue.
court clerks argue that treating heterosexual and homosexual couples
differently isn't unconstitutional and that same-sex marriage is not a
"fundamental right." As for benefits, they contend the impact of being
denied marriage can be limited by proper estate planning, contracts and
advanced medical directives.
The Bostic case isn't alone in
the Old Dominion. Across the state, Lambda Legal and the American Civil
Liberties Union have raised similar issues in a federal class-action
lawsuit on behalf of two lesbian couples. It seeks to win marriage
rights for all the state's same-sex couples who want to marry or have
done so in other states.
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